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Fighting to end the 'ban litigation' crisis: powerful wrongdoers are trying to deny people an essential constitutional right: access to the courts. They have launched a multipronged attack. We cannot let them succeed.

Although the so-called litigation crisis is a myth, our justice system faces a crisis that, sadly, is no myth at all: the "ban litigation" crisis. It threatens the core principles on which our nation is based, including the rule of law.

This is a unique time in our country's history. Numerous restraints on those with power--in both the public and private sectors--have been lifted. Many powerful wrongdoers can be held accountable only in the courts, and they don't like it. So they've unleashed an unprecedented, calculated, and fundamentally un-American attack: Step by step, in area after area, they are trying to eliminate access to the courts--and, ultimately, to justice itself.

This extraordinary approach should not come as a surprise. More than 200 years ago, this country was founded by people who understood that power unchecked is power abused. That's why we have separation of powers, the Bill of Rights, and the right to a day in court.

Even so, this approach is a surprise, particularly with our country at war. The mere idea--much less the practice--of eliminating access to the courts contradicts our fundamental values, as the Supreme Court's decisions in the "enemy combatant" cases two years ago reflect. Still, we're seeing more and more purposeful attempts to ban litigation.

Throughout the United States, corporate wrongdoers are amending their consumer, employee, and investor contracts to explicitly preclude individual and class action litigation. They're seeking to expand federal preemption, mandatory arbitration, and court secrecy, to bar many suits, and to bury the rest.

Meanwhile, Congress and state legislatures are increasingly considering--and passing--legislation that cuts off Americans' access to courts. The House of Representatives passed two bills that prohibit the federal courts, even the Supreme Court, from considering the legislation's constitutionality. (1)

These attacks are delivered in many ways on many fronts, but they all serve a common goal: closing the courthouse doors so victims can't hold the powerful accountable. And the danger is real. Justice is impossible if access to justice is denied.

We cannot let them succeed. Those who defend individual rights--including my organization, Trial Lawyers for Public Justice (TLPJ), which recently launched the Access to Justice Campaign, and ATLA--must work together to uphold the Constitution, right federal preemption, battle mandatory arbitration, preserve class actions, prevent excessive secrecy, protect the rights to counsel and jury trial, and secure access to justice for all.

Attacks on the Constitution

Preserving access to justice, at its core, means upholding the Constitution, the separation of powers, and the courts' role in our nation. It shouldn't be necessary, but it is. Two years ago, President George W. Bush asserted that the war on terrorism gave him unlimited power--exempt from court review--to imprison U.S. citizens and foreign nationals indefinitely by designating them "enemy combatants."

The Supreme Court rejected that assertion in Hamdi v. Rumsfeld. (2) The opinion said, "It is during our most challenging and uncertain moments that our nation's commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we right abroad." (3)

But some powerful interests don't accept the courts' role. They think the president and Congress (or the governor and legislature at the state level) should be free to eliminate people's rights.

This problem is just beginning. The federal government released Hamdi to Saudi Arabia, but not one Guantanamo Bay detainee has yet received a court hearing. The government still won't allow most of them to meet with lawyers.

Now, the Bush administration is back in front of the Supreme Court. In Hamdan v. Rumsfeld, it claims it can use secret evidence never disclosed to the defendant--including unsworn statements from faceless, nameless accusers--against "enemy combatants" on trial for their freedom and their lives. (4)

Meanwhile, corporate wrongdoers are pushing Congress to deny their victims full access to the courts. Proposed legislation would limit or extinguish the Seventh Amendment rights of millions of Americans, including people injured by asbestos exposure, medical malpractice, and MTBE (methyl tertiary butyl ether) water contamination.

But advocates for injured people can right back. For example, a key case in Maryland preserved victims' rights and the courts' role. The state legislature had passed a bill eliminating HMO members' rights and retroactively validating the HMOs' illegal double-billing. In Harvey v. Kaiser Foundation Health Plan of the Mid-Atlantic States, Maryland's highest court found the HMO legislation unconstitutional. (5)

The disrespect some conservatives have for the courts is palpable. After the House passed the bills that barred federal courts from considering their constitutionality, Rep. Todd Akin (R-Mo.) predicted that a president would tell the Supreme Court or federal judges, "You can write as many opinions as you want. We're going to ignore them." Akin added, "That is something completely legitimate for the executive to do." (6)

In another instance, Tom DeLay, then House majority leader, said: "[W]hat I find the most important is to redesign the government, now that we have the opportunity to do that.... [I]t's been my own personal project to redesign government." He added:
 [W]e all know that this judiciary is extremely
 active.... The reason the judiciary
 has been able to impose a separation of
 church and state that's nowhere in the Constitution
 is that Congress didn't stop them.
 The reason we had judicial review is because
 Congress didn't stop them. The reason
 we had a right to privacy is because Congress
 didn't stop them. (7)


Is there any question why there's a "ban litigation" crisis now?

Federal preemption

Even without action by Congress, the Bush administration and corporate defendants are increasingly trying to expand federal preemption. They argue that corporate wrongdoers can't be sued, even if they acted outrageously, because a federal statute, regulation, or action wipes out all lawsuits and state laws that could hold them accountable. The New York Times recently called these efforts "silent tort reform." (8)

Last year, the Bush administration reversed the EPA's long-held position and urged the Supreme Court to hold that the Federal Insecticide, Fungicide, and Rodenticide Act preempts all state damages lawsuits stemming from pesticide use. Fortunately, as TLPJ and other amici urged, the Supreme Court rejected that position, calling it "particularly dubious." (9)

But the administration is now pushing for more limits on lawsuits. The FDA is arguing that millions of people injured by drugs and medical devices are barred from court. (10) The National Highway Traffic Safety Administration increasingly says its safety standards bar lawsuits against automakers. (11) And the Office of the Comptroller of the Currency claims national banks are immune from most consumer protection laws, including predatory lending laws. (12) We must defeat such illegitimate--and dangerous--attempts to extend federal preemption.

Mandatory arbitration

Companies are increasingly using or amending consumer, employee, and investor form contracts to prohibit lawsuits against them and require these consumers, workers, and shareholders to submit to arbitration that is heavily weighted in the companies' favor.

Those signing the contracts often have no choice in the matter. Many do not know that the arbitration provisions are there. Companies slip the provisions into fine print that they know no one reads. Workers, for example, have been found to have "agreed" to arbitrate employment disputes by doing nothing more than staying on the job after their employer adopted a mandatory arbitration policy. (13)

Mandatory arbitration provisions are spreading like wildfire. Banks, HMOs, car dealers, doctors, insurers, and credit card, mortgage, phone, and computer companies now use them.

Class actions

Corporate wrongdoers are trying to ban or limit class actions, and their efforts are growing daily. They've already pushed Congress to pass legislation that will effectively eliminate many state court class actions. Corporate defendants now say that the new federal class action legislation--misnamed the Class Action Fairness Act (14)--bars many cases against them.

More and more companies are adding class action bans to their form contracts to keep consumers, workers, and investors from bringing class actions anywhere--in the courts or arbitration. The courts are hearing more and more challenges to them by consumers and employees whom these bans would effectively bar from court.

Corporate defendants are trying to use "no-opt-out" and "coupon" class action settlements to cap their liability and deprive plaintiffs of any day in court. Such settlements would provide plaintiffs little or no relief--but release the defendants from liability for all their claims.

Excessive secrecy

Excessive secrecy is a key weapon in the attack on access to justice. The reason is simple: Those abusing power know that, as former Supreme Court Justice Louis Brandeis said, sunlight is the best disinfectant.

If people don't know about injustice, they may not care whether the courts can be used to correct it. If people don't know what's taking place in the courts, they can't tell whether justice is being done. And if people can't learn that others' rights were violated, they may not know that their rights were violated, too.

Efforts to expand secrecy and limit public access have increased dramatically. The federal government asserts that, because of the war on terrorism, it can make secret arrests and keep the prisoners' names confidential. New "national security privileges" are being created and invoked to bar discovery of key evidence.

Newly proposed amendments to the Federal Rules of Civil Procedure would allow companies sued for wrongdoing to keep many e-mails and other electronic records secret forever. (15) Also, companies that are forcing more people into mandatory arbitration are doing so in part because it is usually secret.

In 2004--in the first such decision in the country--the New Jersey Supreme Court held that the public has no right to seek access to discovery information in its state's courts, even when there is no good cause for keeping the information secret and its public disclosure "could save lives and limbs." (16) We must challenge--and defeat--such excessive secrecy nationwide to preserve and ensure access to justice.

Rights to counsel and jury trial

The attack on access to justice is so wide-ranging that even the right to counsel and the right to a jury trial are threatened. More than 40 years ago, the Supreme Court held in Gideon v. Wainwright that the Constitution protects the right to counsel for the poor in criminal cases. (17) Within a decade, Congress created the Legal Services Corp. to protect that right in civil cases, too.

The right to counsel is increasingly coming under attack. In 2003, TLPJ and a coalition of public interest groups, as amici curiae, helped persuade the Supreme Court to reject the most dangerous challenge in decades to legal services for the poor. In Brown v. Legal Services of Washington, the Court held 5-4 that using Interest on Lawyers' Trust Accounts (IOLTA) to fund legal services for the poor does not violate the Takings Clause of the Constitution. (18)

Opponents of legal services for the poor have already announced their intent to challenge IOLTA funding as unconstitutional on other grounds. Budget cutbacks in many states have eviscerated the right to counsel for the poor in criminal cases. Litigation may be the only way to ensure that the right to counsel is preserved.

The Seventh Amendment and state constitutions explicitly protect the right to a jury trial. But corporations now have a new tactic for eliminating this right--inserting predispute waivers of the right in their form agreements.

Fortunately, some courts are rejecting this ploy. It was successfully challenged in Grafton Partners L.P. v. Superior Court, in which the California Supreme Court held that predispute waivers of the right to a jury trial violate state law. (19) In another important case, Rieff v. Evans, the Iowa Supreme Court found that there is no "complexity exception" to the right to a jury trial; this right can't be taken away just because a case is complex. (20)

Nearly a century ago, in Chambers v. Baltimore & Ohio Railroad Co., the Supreme Court said, "The right to sue and defend in the courts is the alternative of force. In an organized society it is the right conservative of all other rights, and lies at the foundation of orderly government. It is one of the highest and most essential privileges of citizenship." (21) Lawyers and judges know this is true.

In the United States, the courts are the one place where even the poorest, most powerless person can hold the richest, most powerful person or corporation accountable. Emotional and heated disputes are resolved--and their resolutions are accepted--every day. But if our nation continues to violate the principles on which it is based, these disputes will be resolved in the streets.

That's why the "ban litigation" crisis is so disturbing and dangerous. In the United States, we don't pledge allegiance to liberty and justice for some. We must keep the courthouse doors open--and preserve access to justice--for all.

Working for court access

Trial Lawyers for Public Justice has launched several special projects aimed at stopping attacks on people's rights:

The Federal Preemption Project helps preserve access to justice in federal and state courts. TLPJ has been counsel of record before the Supreme Court in two cases unanimously rejecting preemption: Sprietsma v. Mercury Marine (537 U.S. 51 (2002)) and Freightliner Corp. v. Myrick (514 U.S. 280 (1995)). In the last two years, TLPJ has defeated preemption in cases involving unsafe cars and boats, HMOs, phone customers' rights, and other issues.

The Mandatory Arbitration Abuse Prevention Project is fighting using arbitration to eliminate court access. TLPJ won Tingv. AT&T (319 F.3d 1126 (9th Cir. 2003)), striking down the arbitration clause in AT&T's Customer Service Agreement, and has joined the battle in other cases nationwide.

The Class Action Preservation Project ensures that class actions remain a powerful tool for achieving justice for American consumers and workers. TLPJ won decisions striking down a company's contractual class action ban--Ting in the Ninth Circuit and Discover Bank v. Superior Court in the California Supreme Court (113 P.3d 1100 (Cal. 2005)). Its lawyers recently argued the issue in the New Jersey and Washington state supreme courts.

Project ACCESS, which fights unnecessary court secrecy, has unsealed evidence of dangers to public health and safety, helped injury victims and others oppose overbroad protective orders, and educated the public about the dangers of litigation in secret. It helped win public access to a federal court file about State Farm Insurance Co.'s wrongdoing. (Foltz v. State Farm Mut. Auto Ins. Co., 331 F.3d 1122 (9th Cir. 2003).) It also unsealed a California sanctions decision finding that Honda and its expert witness tried to "win by cheating." (Davis v. City of Auburn, No. SCV9736 (Cal., Placer County Super. Ct. filed Oct. 26, 2005).)

Notes

(1.) Marriage Protection Act of 2005, H.R. 1100, 109th Cong. (2005); Pledge Protection Act of 2005, H.R. 2389, 109th Cong. (2005).

(2.) 124 S. Ct. 2633 (2004).

(3.) Id. at 2648. TLPJ joined amici curiae briefs in Hamdi and two other key Supreme Court cases two years ago: Rasul v. Bush, 124 S. Ct. 2686 (2004) and Rumsfeld v. Padilla, 124 S. Ct. 2711 (2004).

(4.) 415 F.3d 33 (D.C. Cir.), cert. granted, 126 S. Ct. 622 (2005) (mem.).

(5.) 805 A.2d 1061 (Md. 2002). TLPJ represented the HMO members before Maryland's high court.

(6.) Marcia Coyle, Rift Grows Between Congress and the Courts, NAT'L L.J., Oct. 18, 2004, available at www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1097686261219 (last visited May 31, 2006).

(7.) Interview with Tom DeLay, WASH. TIMES, Wash., D.C. (Apr. 14, 2005), available at www.washingtontimes.com/national/20050413111439-5048r.htm (last visited May 31, 2006).

(8.) Stephen Labaton, 'Silent Tort Reform' Is Overriding States' Powers, N.Y. TIMES, Mar. 10, 2006, available at www.nytimes.com/2006/03/10/politics/10legal.htm (last visited May 31, 2006).

(9.) Bates v. Dow AgroSciences, LLC, 125 S. Ct. 1788, 1801 (2005).

(10.) See 71 Fed. Reg. 3922, 3933-3936 (Jan. 24, 2006).

(11.) See, e.g., 70 Fed. Reg. 49,223 (proposed Aug. 23, 2005).

(12.) See 12 C.F.R. [section] 7.4008(d) (2006).

(13.) See, e.g., Luke v. Baptist Med. Center-Princeton, No. 03-14342 (11th Cir. Mar. 11, 2004) (holding that an employee who kept working after her employer adopted a mandatory arbitration clause had assented to arbitration, despite her repeated refusals to sign the arbitration clause).

(14.) Pub. L. No. 109-2, 119 Stat. 4 (2005) (codified in scattered sections of 28 U.S.C.).

(15.) See Federal Judiciary, Pending Rules Amendments to Rules 16, 26, 33, 34, 37, 45, and Form 35, at www.uscourts.gov/rules/newrules6.html#cv0804 (last visited May 31, 2006).

(16.) See Estate of Frankl v. Goodyear Tire & Rubber Co., 853 A.2d 880 (N J. 2004).

(17.) 83 S. Ct. 792, 796 (1963).

(18.) 123 S. Ct. 1406, 1420-21 (2003).

(19.) 116 P.3d 479 (Cal. 2005). TLPJ filed an amicus brief in the case. See also Jane Spencer, Waiving Your Right to a Jury Trial: After Years of Requiring Arbitration, Companies Return to the Court System--but with Conditions, WALL ST. J., Aug. 17, 2004, at D1.

(20.) 672 N.W.2d 728, 731-32 (Iowa 2003). TLPJ filed an amicus brief in the case.

(21.) 207 U.S. 142, 148 (1907).

ARTHUR H. BRYANT is the executive director of Trial Lawyers for Public Justice, a membership-supported national public interest law firm with offices in Washington, D.C., and Oakland, California. He can be contacted at abryant@tlpj.org.
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Date:Jul 1, 2006
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